Texas Republicans quietly cut penalties for honest voting errors

Republican priority voting reforms and restrictions signed last week added a number of new election-related offenses and increased criminal penalties for others, all of which have been hotly debated this summer.

But one of these major provisions has received little attention.

The bill lowered the criminal offense for illegal voting from a second degree felony to a class A felony, the latter punishable by up to one year in prison.

It also made a slight change to require that a person accused of illegal voting does so either “knowingly”, as the law currently states, or “intentionally”.

The provisions could impact ongoing cases that have ignited debate over the bill, including that of Crystal Mason, a Black Fort Worth woman who faces five years in state prison for illegally filing a ballot. provisional vote – which was never counted – although she said she had not. to know that she was not entitled to vote.

In another high-profile case that could be affected, Hervis Rogers, a black man from Houston this year, has been charged with illegal voting after making national headlines for his six-hour wait in line in the primary election of 2020.

The ACLU, whose attorneys among other members of the legal team represent both Mason and Rogers, could not be reached for comment.

The illegal voting offense accounts for nearly half of the Texas Attorney General’s office pending voter fraud cases, around 20, though most are linked to an alleged illegal voting system in a mayoral election Edinburgh in 2017. The office also did not respond to a request. for comment.

The changes came from an amendment by State Representative Steve Allison, R-San Antonio, on the House floor in late August. Allison was not available for an interview, but her chief of staff, Rocky Gage, said Allison wanted to make sure people who accidentally vote illegally were not charged. The amendment was not designed specifically with Mason’s case in mind, Gage said, but rather to solve the general problem.

“The main reason for tabling this document – Rep. Allison, he and other members thought it was important to establish that ‘intention’,” Gage said. “There is a lot of talk – (the state representative) Diego Bernal, for example, said:” If I help my grandmother, and I don’t know (it’s illegal), now I have troubles. So we thought to address these concerns – there is a need to address these concerns.

“I think the members understood this was important,” Gage said.

Texas House Speaker Dade Phelan, who is a founding member of the bipartisan House Criminal Justice Reform Caucus, said the provision was part of the legislature’s “holistic approach to advancing the integrity of elections “which struck” the appropriate balance between access to the ballot and accountability “.

Lowering the sentence will protect voters who make innocent mistakes and help state lawyers stay focused on the few really bad actors, said C. Robert Heath, an election lawyer who served under the Democratic attorney general from Texas John Hill in the 1970s.

“Laws are more easily enforced when they are more reasonable,” said Heath. “Most of the people who vote illegally, and I don’t think there are very many, do so because they are confused or don’t understand the law.”

Regardless of the sanction, Heath said there was a reason cases of voter fraud were so rare.

“Whether it’s a misdemeanor or a felony, it’s high risk and low reward,” he said. “If you want to change the result, this is a very unusual situation, and a vote will not do it. You’re going to need a lot of votes.

Still, some Republicans say any sanctions relief in the Election Code is a mistake. Among them is Andrew Eller, a 25-year-old election judge in Bell County, who has argued for tougher penalties for judges who refuse poll observers.

“I think tougher penalties are always the best for illegal voting,” Eller said in an interview on Friday. “When a person votes illegally, they withdraw someone else’s legal vote. If you do it knowingly, that should be a higher standard.

Mason’s case was at one point a sticking point between the Texas House and the Senate. The bill was one step away from passage if the Senate were to accept the House’s changes, but the bill’s author, Sen. Bryan Hughes, R-Mineola, said he was not agree with a House amendment intended to clarify the law in cases like Mason’s.

The amendment, a bipartisan effort by Representatives Briscoe Cain, R-Deer Park, and John Bucy III, D-Austin, would have clarified that a person must not only know the circumstances that made him or her ineligible, but also that those circumstances applied to her. .

The Fort Worth Court of Appeal, in affirming Mason’s conviction, argued that the state had only to prove that she had voted while knowing the condition that made her ineligible: that she was in federal probation at the time.

A conference committee made up of members from both houses was convened with instructions from Hughes to withdraw the amendment and did so. Neither Hughes nor House author, Representative Andrew Murr, R-Junction, responded to a request for comment.

The House then passed a resolution, a formal expression of opinion that does not have the force of law, that said members oppose prosecution of Texans who mistakenly vote without knowing they are ineligible. Phelan noted that the resolution “was passed by an overwhelming majority.”

Chuck DeVore, vice president of national initiatives at the right-wing Texas Public Policy Foundation, said that while the organization has not taken a specific position on this provision, it supports another part of Senate Bill 1 that obliges the courts to inform criminals. of their right to vote in the event of conviction. Mason was on probation and Rogers was on parole when they tried to vote.

“It’s no shock to me because I don’t think a lot of people, frankly, want to see these very rare cases prosecuted,” DeVore said, referring to cases involving voters making honest mistakes.

DeVore pointed to data from the Attorney General’s office which shows that only four cases over 16 years involved a voter who was not eligible to vote.

“The impression was that members of both parties weren’t really enthusiastic about this kind of punishment,” he said.

One of the main priorities of Republicans this session was a section creating a specific criminal sanction for harvesting votes, illegally forcing people to vote in a certain way in return for compensation or some other benefit. , which is now a third degree felony.

DeVore added that, combined with this provision, reducing the offense of “illegal voting” makes sense.

“You want to sue the people who actually run these programs, rather than the people who have been brought in as, in many cases, ‘dupes’ to participate,” DeVore said. “I’m not particularly concerned about the 20 people who end up in one of these schemes and who each get $ 10.”

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